Opinion 88-11
(May 1988)

By letter, dated March 23, 1988, you asked for an opinion from the Professional Guidance Committee as to whether you were permitted to represent the wife in a divorce action under the circumstances described below. For the reasons which follow, the Committee holds that Rule 1.9(a) of the Rules of Professional Conduct prohibits your representation of the wife without the husband's consent.

You are a social friend of a couple seeking a divorce. You have represented the husband with regard to employment contracts on three separate occasions. The husband is no longer working under two of the contracts in question. However, he is currently working under the third contract. In addition, the husband is a doctor who on occasion has referred some clients to you. The wife has asked you to represent her in a divorce action.

The following Rules of Professional Conduct, effective April 1, 1988, control your inquiry.

Rule 1.9 (Conflict of Interest: Former Client) provides that:

A lawyer who has formally represented a client in a matter shall not thereafter:

a. represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client unless the former client consents after a full disclosure of the circumstances and consultation; or,

b. use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

The Comment to Rule 1.9 notes that:

The scope of a matter for purposes of Rule l.9(a) may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter could also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited.

It should be noted that there is no counterpart to Rule 1.9(a) or (b) in the Disciplinary Rules to the superseded Code of Professional Responsibility. The problem addressed in Rule 1.9(a) has frequently been dealt with under Canon 9 of the Code which provides that a lawyer should avoid even the appearance of professional impropriety substantially related, the Committee notes that divorce proceedings in this Commonwealth following adoption in 1980 of the Divorce Code, 23 P.A. 101, et seq., inevitably involve monetary issues, including equitable distribution of property, alimony and support. Even the threshold decision whether or not to bring claims for equitable distribution and alimony requires an evaluation of the husband's employment contract. Therefore, your representation of the wife in the divorce has an inherent substantial relationship to your prior representation of the husband regarding his employment contracts.

Accordingly, Rule 1.9(a) prohibits you from representing the wife without the husband's consent fn1.

Such representation would be permitted under the Rules, if the husband consents after a full disclosure of the circumstances and consultation. See Rule 1.9(b).

In conclusion, you may undertake the representation with the husband's consent. However, should you decide to seek the consent of the husband so that you can represent the wife, you should consult with the wife about a potential conflict of interest because you receive referrals from the husband. See Rule 1.7(a). Moreover, this Committee has previously advised counsel to consider the practical reasons for not representing a spouse in a divorce action against a former client. See Opinion 77-10. Given your friendship with both spouses, the traumatic nature of most divorce proceedings and the possibility that your representation of the wife could become a collateral issue that would inhibit your ability to represent your client's interests, the Committee would urge you to consider whether you wish to represent the wife, even if the husband consents fn2.

Notes

1. Under the superseded Code of Professional Responsibility, this Committee has found that it was ethically proper for a lawyer to represent the wife in a divorce action against a former client where the prior representation concerned a business problem concerning a partnership the husband had with his Father. See Opinion 77-10.

2. The husband may believe that he has an ongoing attorney-client relationship with you as a result of your prior representation. You should advise him that by undertaking to represent his wife, you might be precluded from representing him in his business affairs while the divorce proceeding is pending.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.